US IMMIGRATION UPDATES

Child Citizenship Act of 2001 Confers Automatic Citizenship on Child of US Citizen

By Vanessa S. Barcelona

On
October 30, 2000, then-President Clinton signed the Child
Citizenship Act, which conferred automatic U.S. citizenship to
the child of a U.S. citizen. This law became effective on
February 27, 2001.

What is a “child” for immigration purposes?

A “child” is defined by immigration regulations as an
unmarried person, less than 21 years of age. This definition
includes legitimated and adopted children, so long as the
legitimation or adoption took place before the child’s 16th
birthday.

Adopted children must also have been in the legal custody, and must
have been physically residing with the U.S. citizen parent, for at
least 2 years, whether prior to or after the adoption, to be
considered a “child” for immigration purposes.

An exception to this 2-year custody/residence requirement applies if
the adopted child is also considered an “orphan” for immigration
purposes. That is, the child must have been orphaned by the “death
or disappearance of, abandonment or desertion by, or separation or
loss from, both parents, or for whom the sole or surviving parent is
incapable of providing the proper care and has in writing
irrevocably released the child for emigration and adoption”.

When is the child eligible for automatic citizenship?

A child as defined by immigration law is conferred automatic
citizenship so long as the following conditions are met:

1. One or both of the child’s parents is a citizen of the United
States (by birth or naturalization);
2. The child (natural or adopted) is under 18 years of age;
3. The child is residing in the U.S. as a lawful permanent resident
(LPR); and
4. The child is in the legal and physical custody of the citizen
parent.
When is automatic citizenship conferred?
The child’s citizenship is automatic, so long as the above
requirements are met.

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How can automatic citizenship be documented?

Proof of the child’s U.S. citizenship can be obtained one of 2 ways:

1. Apply for a U.S. passport
File a DSP-11, application for U.S. passport, at any passport
agency, selected U.S. post offices. If the minor LPR child is
abroad, file the application with the U.S. Embassy there.
2. Apply for a Certificate of Citizenship
For the natural child of a U.S. citizen, file an N-600, application
for certificate of citizenship, with the local INS office serving
the jurisdiction of residence. For the adopted child of a U.S.
citizen, file an N-643 form with the local INS office serving the
jurisdiction of residence.

What if the child is not a U.S. LPR?

Citizenship is not automatic for foreign-born children of U.S.
citizens where the foreign-born child is permanently residing abroad
(i.e., not a US LPR). But citizenship can be acquired through the
issuance of a Certificate of Citizenship (not U.S. passport). To be
eligible, the U.S. citizen parent must apply for naturalization on
behalf of the foreign-born and foreign resident child. The
application can be filed either in the U.S. or from abroad. The
following requirements must be met:

1. At least 1 of the parents must be a U.S. citizen, by birth or
naturalization; AND
2. The U.S. citizen parent must have been physically present in the
U.S. (or its outlying possessions) for a total period of 5 years (at
least), of which at least 2 years must have been spent in the U.S.
after that parent reached the age of 14; OR
3. The U.S. citizen parent has a U.S. citizen parent who has been
physically present in the U.S. (or its outlying possessions) for a
total of 5 years (at least), of which at least 2 years must have
been spent in the U.S. after having reached the age of 14; AND
4. The child is under 18 years of age; AND
5. The child is residing outside the U.S. in the legal and physical
custody of the U.S. citizen parent, is temporarily present in the
United States pursuant to lawful admission, and is in lawful status.

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What is the application process for the
foreign-born, foreign resident (non LPR) child?

1. For a natural child, file an N-600;
2. For an adopted child, file an N-643;
3. For a child seeking to acquire U.S.
citizenship on the basis of his/her
grandparent’s physical presence in the United
States, file an N-600 (if a natural child) or
N-643 (if adopted child) with a Supplement A.

Will there be an interview?

Yes. And both child and parent must be present
at the interview.
Original documents (of which copies must have
been submitted at the time of the application)
must be presented to the officer at that time.
Upon approval and administration of the oath of
allegiance, the Certificate of Citizenship can
be conferred. The child must be under 18 at the
time citizenship is conferred. Request expedited
treatment (at the time of the application) if
the child is approaching their 18th birthday.
Expedited treatment will be given in these
circumstances.

What if the child is over 18?

If the child of the U.S. citizen is over 18, and
is an LPR, then that child will have to go
through the naturalization process and apply for
U.S. citizenship with the filing of an N-400.
All requirements for naturalization applicants
are applicable. If the child is not an LPR, then
an I-130 petition will have to be filed on
behalf of the foreign-born foreign resident
child, so that upon approval, the child can be
interviewed at the U.S. consulate and an
immigrant visa can be issued. That child must be
issued the visa before his/her 21st birthday.
Upon entry into the U.S. as a lawful permanent
resident, that child can thereafter file for
U.S. naturalization as soon as s/he is eligible
to do so.

VANESSA S. BARCELONA is a partner with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net